The appellants, Sello Nong and Thomas Masingi, were convicted in the Regional Court, Johannesburg, of robbery with aggravating circumstances under s 51 of the Criminal Law Amendment Act 105 of 1997. The complainant testified that he was robbed at gunpoint by two assailants, later discovered to be using a toy gun. After the robbery, the complainant followed the assailants and, with assistance from a Community Policing Forum member, Simphiwe Mthembu, apprehended them. A toy gun was recovered from the first appellant and handed to a police officer, Constable Ndaonde. The appellants were sentenced to 12 and 15 years’ imprisonment respectively. Leave to appeal against conviction was refused by the regional magistrate, a petition under s 309C of the Criminal Procedure Act 51 of 1977 was dismissed by the Gauteng Division of the High Court, and the appellants were subsequently granted special leave by the Supreme Court of Appeal to appeal against the refusal of the petition.
The appellants’ application for leave to appeal against the refusal of their petition in respect of their conviction was dismissed.
The case reaffirms the limited jurisdiction of the Supreme Court of Appeal in matters where no appeal on the merits has been heard by the High Court, clarifying that the SCA may only consider whether leave to appeal was correctly refused. It also restates the test for ‘reasonable prospects of success’ and the approach to single-witness and identification evidence in criminal proceedings.